Many are keen of acquiring property in Thailand. Leasing and purchasing land, house, villa and condominium unit are mostly observed.

As a buyer, it is essential to know the legalities involved in acquiring property. As a foreigner, before purchasing a property anywhere in Thailand, it is recommended that you discuss your options and the process with the experts (e.g. Civil and Commercial Lawyers)

Foreigners may own condominium unit(s) freehold and outright 100% therefore making this option the least complicated and the best option for a foreigner wishing to purchase property in Thailand. Since1991, Thailand Condominium Act (No. 2) have enabled foreigners eligible to buy condominium unit(s) with freehold title and contained their name in the title deed, Condominiums in Thailand are constantly on the rise, leaving no land to spare. Condominium unit(s) may be brought off-plan or one that has already been built. This purchase may also take place between natural persons or directly brought from the developer. Condominiums in Thailand have a foreign quota of 49% purchasers, which means that only 49% of the total space/units of a condominium can be owned by foreigners on a freehold title. The other 51% is referred to Thai Nationals. Before purchasing a condominium unit in Thailand, it is advised to ensure that the foreign quota has not exceeded.

Foreigners may also choose to lease out a premise for the maximum period permissible by law of 30 years. Generally, there is an extension of the lease permissible for a period of up to 90 years, however, the land departments are usually reluctant to register such a lease, and this is also upon the discretion of the land and house owner. The lease options give a legal right to reside and possess the house with an option to sub-lease however with the permission of the land owner. Leases are not transferable however they are inheritable if it is agreed between the parties and is stipulated in the contract.

Basic guidelines:

Due diligence over the house and land you will acquire to insure it is free from encumbrance

Revision of clauses in the contracts covering your rights and best interest

Registration of conveyance to ensure that legal acquisition of property is fulfilled

Whether purchasing a condominium, villa or a house, it is suggested that prior to making such a purchase, once you have found something of interest, to contact a lawyer or solicitor before proceeding.

At Jus Laws & Consult we offer specialized services with our knowledgeable lawyers on local and International law to assist with foreign acquisition of property. Contact us today at
our office either in Bangkok or in Phuket for a free basic consultation!

The 21st century is a golden period for the flourishment and expansion of the fine arts not only in Thailand but in South East Asia as a whole. Even though the artistic element of Thai architecture as seen in Buddhist temples and pagodas is widely known (Unesco has added 3 Thai locations to the World Heritage List: Ban Chiang Archaeological Site, Ayutthaya and Sukhothai), Thailand is still a few steps behind other countries in Asia in terms of the art business.

For example, leading positions in the continent are headed almost exclusively by renowned Hong Kong collectors such as William Lim, Adrian Cheng, Joseph Lau and Alan Lau. There are, however, indications of change, as collectors in other regions are emerging such as the Indonesian Budi Tek or the Japanese Shoichiro Fukutake among others.

Despite negative forecast for 2016, since 2010 China has become the world’s leading art marketplace, with other regional hubs growing rapidly in Indonesia (+39%) and Singapore (+22%). There is a growing awareness and interest focused on traditional Chinese, Japanese and Korean ceramic pieces and antiques, as well as an expanding amount of Asian collectors targeting more contemporary art such as Jean-Michel Basquiat art pieces. In China new regulations are being implemented since March 2016 and the necessity of a basic global legal framework for the art business look a must for the professionals of the art world.

According to the Unesco Declaration of 17 October 2003, the international community recognizes the importance of the protection of cultural heritage and reaffirms its commitment to fight to ensure that such cultural heritage may be transmitted to the succeeding generations. Indeed, in my opinion it is impressive that the artistic heritage found in South East Asia has survived the phenomenon of colonialism and decades of cruel war in the continent, and nowadays is one of the most valuable assets for countries in Indochina (For example: Cambodia), reflecting the necessity of cultural diversity for humankind just as biodiversity is for nature.

On a business related note, it is indeed astonishing how the art market is maturing in the Asean region. We can notice how ‘the big two’ auction houses, being Sotheby’s and Christie’s, are maneuvering fiercely with the goal of gaining a strategic foothold in the promising Asian Art market by setting up different business models of legal entities such as Education centers, representative offices, art institutes, salesrooms and art consultants in key cities such as Manila, Jakarta, Kuala Lumpur and Bangkok.

Asean market is the one of the best performing markets for fine arts as the modern and contemporary art market experienced a growth of 28% in sales during 2015. Indeed, it is not a secret that private collectors are maintaining discourse with curators and art merchants, such as the Thai collector Mr. Tira Vanichtheeranont in Bangkok, with the goal of setting up small museums and art institutes across the region. Recently, the Tourism Authority of Thailand openly asserted that main Thai cities need to promote the establishment of museums in order to attract less low budget tourists and catch the attention of more sophisticated or high end tourists.

Evidently, not everything is glamorous in the world of fine arts. The lack of professionalism and credentials are two main weak points for the art sector in the emerging South East Asian market. Evidence of this is the relative abundance of low profile agents and “dealers” with small knowledge or no knowledge of fine arts, often found fighting for commissions that they do not really control or have direct access to.

Many transactions in the art business collapse due to the presence of “middle men” that sell master pieces as they might also sell yachts, luxury villas, diamonds or gold bars. Pablo Picasso said “Art is a lie that makes us realize truth”, which is proving increasingly relevant in a market saturated with unprofessional practices causing falsifications and problems related to the authenticity of pieces.

This is why it is vital to work with professional lawyers and qualified curators with expertise in fine art. Specialized lawyers and curators must work together in conducting comprehensive due diligences prior to the acquisition of pieces by art collectors or museums. It is with this in mind that I would argue that the know-how and know who are as essential as legal expertise and art knowledge in completing such a job.

For example, the curator can draft a price analysis of a piece that is relevant for the collector in order to avoid speculative transactions, even if prices in art differ substantially from other assets, the purchase of collections of art also involves an emotional element that can affect the prospect of the transaction.

As the signature of an artist can change during his or her life, technical analysis by microscope may not be binding and the Certificate of Authenticity (COA) is not necessarily decisive. In my professional experience as a lawyer and art collector I would argue that the main document to take into consideration is the Provenance (from the French word “provenir” that means “to come from”), that is the most important document to assess the genuineness of a piece as it represents the entire life and existence of the piece by including detailed information (dimensions, medium and title) related to the piece, the different owners who possessed the piece, the different museums or art galleries where the piece was exhibited, lot number in catalogs, specific mentions to the piece in books, films and art literature, Catalogues raisonnés, sales or customs receipts acknowledging the piece or appraisals from experts (real experts on the particular artist) or well-known authorities known to have possessed the piece.

Obviously all these documentation comprising the provenance must be original, not a photocopy, and the details have to be confirmed by consultants, both a curator and lawyer, double checking every single detail related to veracity of the referred name, surname and auction house or art gallery.

In order to protect the interests of the collector, lawyers who conduct due diligences on the piece must minimize the risk of litigation, potential disputes or purchase on doubtful pieces. On the scope of work of this due diligence, it is necessary to secure compliance by not giving any chance to trade with stolen art (For example: Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Hague, 14 May 1954 and the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict. The Hague, 26 March 1999) or any misconduct or criminal and fraudulent behavior by knowing the client (For Example: Money laundering through art).

In fact I can see that, even if nowadays the big law firms in Thailand have no remote idea about this business, in the future lawyers will involve more on litigation and court proceedings related to art forgery and restitution and recovery of art pieces, sculptures and heritage representing a big variety of institutions such as museums, governments, embassies, insurance companies, art investment funds, patronage, foundations and families. We already have witness this outside of Asia with legal proceedings involved art pieces of Leonardo Da Vinci, Botticelli or Chagall and many other international court cases after the end of the Second World War.

In addition to this, hereby the art lawyer must take in account: jurisdiction and international taxation. For example: a piece purchased from an art gallery in Paris by an Asian collector will carry with it duties and import tariffs that are not present if the same piece was bought in a free trade port, such as Singapore.

The legal work does not finish at this, and it is advisable to work with a legal professional or law firm on issues such as those following:

-Purchase agreement

-Intellectual Property issues

-Insurance (theft or natural disaster)

-Transportation (Export-import)

-Heritage and wills

-Tax planning

To conclude, I would like to point out that the forecast for art business in the South East Asian region is overall very positive and is full of opportunities in the public and private sector for those willing to look. In my opinion, the current trend shows that over time the public sector will increasingly become involved in private sector projects involving art. As a result, legal professionals will have to acquire more familiarity with documentation related to art, and long term private collectors will set up and manage their own highly profitable boutique museums.

At the same time I believe that many new players will burst into the Asian art scene, as fine art can be a more profitable investment than banking and financial service (volatility of art is much lower than US and international equities and commodities). In fact recent statistics show that 72% of the art collectors acquired art guided with an investment perspective. This has to be dully assimilated by the wealth management firms and the investment banks in Asia. The outlook is very promising and I have no doubt that lawyers will play an important role on the future of art business in South East Asia.

Last Friday 11th of March 2016, the Board of Investment of Thailand BOI organized an event mainly for new Chinese investors at the beautiful venue of Dusit Thani Hotel in Silom (Bangkok). The seminar was conducted simultaneous in Chinese and Thai language at a crowded Napali Ballroom.

During the seminar “BOI Policy Update: Moving Towards a New Engine of Growth”, diplomats of the People’s Republic of China, the Deputy Secretary General of BOI Ms. Ajarin Pattanapanchai and a representative of the National Science Technology and Innovation Policy Office introduced the main topics of the Board of Investment of interest of the Chinese investors and business people.

Lawyers representing Juslaws & Consult (J&C) attended the seminar to join the interesting discussion among Chinese business people and BOI officials on the new cluster policy and the different tax and non-tax incentives under BOI scheme.

The BOI under the newly launched special measures expects a steep increase in the value of the projects from about 218 billion THB in 2015 to 450 billion THB in 2016. Around 1,600 projects are eligible to gain additional tax privileges during 2016 in different sectors such as medical equipment manufacturing, digital economy, software, the international headquarters and international trading center schemes, engineering design, research and development and biotechnology.

Smart Visa Making Long Stay In Thailand Easier

For the purpose of further promoting the Eastern Economic Corridor and a value-based, innovative, and technology-driven economy under the Thailand 4.0 policy, the Board of Investment (BOI) has launched the SMART Visa program as of February 1, 2018. The program is designed to attract more science and technology experts, senior executives, investors and startup entrepreneurs to work or invest in Thailand in relation to the targeted industries. This article is to make a summary of the program and provide our preliminary observation

Targeted Industries

The SMART Visa is designed for the targeted industries as announced by BOI under the Thailand 4.0 policy, namely:

Next-Generation Automotive

Smart Electronics

Affluent, Medical and Wellness Tourism

Agriculture and Biotechnology

Food for the Future

Automation and Robotics

Aviation and Logistics

Biofuels and Biochemicals

Digital

Medical Hub

Eligible People

There are 5 types of SMART Visa, applicable to different categories of persons respectively:

SMART “T”: Highly skilled technical professionals

SMART “I”: Investors

SMART “E”: Senior executives

SMART “S”: Foreign startup entrepreneurs

SMART “O”: Spouse and children of holders of the other types of SMART Visa

Privileges

A SMART Visa offers the following privileges (compared with the non-immigrant visa) to the holder:

Longer term of stay: maximum 4 years for types T, I and E, and renewable for unlimited times, but not exceeding the remaining employment/service contract term; for type S, 1 year for the first term, and renewable for maximum 2 years for unlimited times

No work permit is required

Frequency for reporting to the Immigration Bureau is extended from every 90 days to every 1 year

No re-entry permit is required

Spouses and children are allowed to stay and work in Thailand without the work permit

Qualifications

SMART T

Science and technology experts

Salary ≥ 200,000 baht/month

Employment contract or service contract in Thailand with remaining validity term ≥ 1 year

Employing companies being in the targeted industries

SMART E

High-level executives such as Chairman or Managing Director

Holder of Bachelor’s degrees or higher with work experience ≥ 10 years

Salary ≥ 200,000 baht/month

Employment contract or service contract in Thailand with remaining validity term ≥ 1 year

Working for companies using technology in manufacturing or delivering services and being in the targeted industries

SMART I

Minimum direct investment of 20 million baht

Investing in companies using technology in manufacturing or delivering services and being in the targeted industries

SMART S

Fixed deposit of ≥ 600,000 baht with the remaining maturity term ≥ 1 year

Health insurance

Participating in an endorsed incubation, accelerator program or a similar program/or obtaining joint venture with or being endorsed by a relevant Thai government agency

Must set up a company in the targeted industries in Thailand within 1 year with at least 25% ownership or being a board member

OSS coordinates with other competent Thai government agencies to verify the qualifications;

Once verification is passed, BOI will issue an endorsement letter;

The applicant can use the endorsement letter to apply for the SMART Visa from OSS or the local Royal Thai Embassy/Consulate General.

The entire process for the qualification endorsement will take 30 working days from OSS’s receipt of complete documents.

The applicant may convert a non-immigrant visa to a SMART Visa or renew a SMART Visa at OSS. The conversion and renewal will follow the same requirements and procedures as those for the first-time application.

Deficiencies

The SMART Visa program is newly introduced to the market and there remain some deficiencies. First, some qualifications are not clearly defined (e.g. who are “experts” and who are “high-level executives”), leaving broad discretion to the officials, which will cause uncertainty to the applicants when planning their stay in Thailand. Second, some conditions are too burdensome. For example, the requirement for fixed saving of 600,000 baht for at least 1 year may be unrealistic for startup entrepreneurs who are often short of cash. Third, the relatively long list of documents for the applications and the lengthy timeframe for processing make deter attempts for application.

Conclusion

The SMART Visa offers a new option for high-quality foreigners to stay and work in Thailand more stably. Having said that, there is still room for improvement. In response to our consultation, OSS officials admitted that since the launch of the program in February 2018, no any application has been submitted yet, and that they are considering modifications in order to incentivize applications. Juslaws will keep close follow-up on the modifications if any and post updates accordingly.